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This case is a challenge by Texas and eight other states to the Deferred Action for Childhood Arrivals (DACA) program.  DACA was created in 2012 by the Obama Administration, and it permits certain immigrants brought to the United States as children to apply, on a case-by-case basis, for temporary work authorization and relief from deportation.  Texas filed suit in 2018, after several courts ruled that the Trump Administration’s attempt to end DACA was unlawful.  It claims that DACA’s creation was procedurally improper and that DACA substantively conflicts with immigration statutes.

Just after this case was filed, a group of individual DACA recipients were allowed to be added to this case as defendants, so that they could help defend the program’s legality.  The State of New Jersey likewise intervened for the same purpose. 

Soon after filing suit, Texas asked Judge Hanen to preliminarily enjoin DACA–i.e., to issue an order prohibiting the federal government from continuing the DACA program–during the pendency of the case.  After briefing and argument, Judge Hanen denied that request on August 31, 2018, based principally on Texas’s years-long delay in bringing suit to challenge DACA.  Texas chose not to appeal that decision, and the case proceeded at the district court.

Approximately three years later, on July 16, 2021, Judge Hanen issued an opinion that resolved the case in Texas’s favor, ruling that DACA was improperly issued as a procedural matter and that it was in conflict with immigration statutes as a substantive matter.  Judge Hanen also issued an order permanently enjoining (blocking) the DACA program, but he “temporarily stayed” (paused) that injunction, pending further court order, to permit the federal government to continue processing renewal applications from individuals who had received DACA as of the date of his injunction.  The injunction prohibits the federal government from granting new applications for DACA.

In September 2021, all three sets of Defendants – the federal government, the State of New Jersey, and the group of individual DACA recipients – appealed Judge Hanen’s decision and injunction to the Fifth Circuit.  On October 5, 2022, the Fifth Circuit issued an opinion affirming Judge Hanen’s decision and remanding the case back to him so that he could consider in the first instance the legality of a regulation (also called a “rule”) the Biden Administration issued in August 2022.   As a practical matter, the August 2022 rule changes virtually nothing about DACA: it has the same name, forms, application process, eligibility criteria, and fees as it did before. The rule does, however, put the program on stronger legal footing. 

On October 14, 2022, Judge Hanen issued an order extending his previously-issued injunction to the new DACA rule, maintaining the status quo. Thereafter, Texas filed a supplemental complaint to formally challenge the new DACA rule.

Eleven months later, on September 13, 2023–and after briefing and oral argument–Judge Hanen issued an opinion holding that the DACA rule suffers from the same legal infirmities as the prior version of DACA, which was based on an agency memorandum. Again Judge Hanen did not change the status quo: the approximately 580,000 individuals with DACA can continue to renew for the time being, but the federal government is prohibited from granting any new applications. 

The decision was appealed in November 2023.

Technical Summary

Texas alleges that DACA was required to (but did not) go through notice and comment rulemaking, in violation of the Administrative Procedure Act (APA); that DACA is contrary to the immigration system established by the Immigration and Nationality Act, as amended, and should therefore be vacated under the APA; and that it violates the Take Care Clause of Article II (which requires the President to “take Care that the Laws be faithfully executed”).  

Judge Hanen never reached the Take Care claim, at either the preliminary injunction stage or at summary judgment, but granted summary judgment to Texas on the other two claims.

Texas’s supplemental complaint drops the notice and comment claim but asserts the same other three claims.


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